No. 90-355
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Beaverhead,
The Honorable Frank M. Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Andrew P. Suenram, Esq.; Max Hansen, P.C.,
Dillon, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Deanne L. Sandholm, Assistant Attorney General,
Helena, Montana
Thomas R. Scott, Beaverhead County Attorney, Dillon,
Montana
Calvin Erb, Deputy Beaverhead County Attorney,
Dillon, Montana
Submitted on Briefs: October 19, 1990
Decided: January 30, 1991
Filed:
Clerk
Justice Diane G. Barz delivered the Opinion of the Court.
Charles P. Van Pelt, Jr., appeals his felony convictions by
a jury on two counts of incest, one count of sexual assault, and
one count of attempted sexual intercourse without consent in the
District Court of the Fifth Judicial District, Beaverhead County.
We affirm.
Appellant raises two issues on appeal:
1. Whether the District Court erred in failing to subpoena
an out-of-state witness.
2. Whether the District Court erred in granting the State's
motion in limine which precludedthe introduction of evidence under
5 45-5-511(4), MCA.
Charles Van Pelt, Jr. was charged by information on February
22, 1990, with the crimes of incest (two counts) under 5 45-5-507,
MCA, sexual assault under 5 45-5-502, MCA, and attempted sexual
intercourse without consent under 5 5 45-4-103 and 45-5-503, MCA.
He was convicted on all counts by jury verdict on April 25, 1990.
The victim of these crimes was T.A.E., step-daughter of Van Pelt.
T.A.E. was nine years old in 1988, the time the crimes were found
to have occurred and is the natural daughter of Joyce Edwards Van
Pelt and Ron Edwards. Joyce and Ron were divorced in 1987.
Following the divorce, T.A.E. was placed in a foster home in Grant,
Montana. Joyce and Van Pelt were married in February of 1988.
T.A.E. left the foster home in July, 1988, and returned to Dillon,
Montana, by court order to live with her mother, Joyce and Van
Pelt. S.V.P. also lived with the family. S.V.P. is Van Pelt's
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daughter from a previous marriage.
T.A.E. testified at trial that shortly after she returned to
Dillon to live with her mother, Van Pelt began touching her breasts
and vagina. She testified that he attempted to have sexual
intercourse with her and that he forced her to perform oral sex on
him. T.A.E. was able to describe in detail the acts performed by
Van Pelt.
In September, 1988, the family decided to move to Kentucky.
They initially travelled to Santa Cruz, California, where they
resided with relatives for a period of about seven months. In the
spring of 1989 they started out for Kentucky. En route to Kentucky
they had vehicle problems and had to stay at the Salvation Army
Family Lodge in Oklahoma City, Oklahoma. While at the Lodge,
T.A.E. made acquaintance with Pam Bennett, another resident at the
Lodge. Pam observed T.A.E. and Van Pelt interact, and sensing
something was wrong, questioned T.A.E. about her relationship with
Van Pelt. T.A.E. confided in Pam and related to her the incidents
that had occurred between herself and Van Pelt. Pam notified the
authorities in Oklahoma and following a civil investigation, T.A.E.
was removed from the Van Pelts1 care and returned to her natural
father in ill on. Van Pelt was living in Williamsburg, Kentucky,
at the time charges were brought against him by this State. He
turned himself in to Kentucky authorities, was released on bond,
and travelled to Dillon for trial.
The first issue is whether the ~istrictCourt erred in denying
appellantls motion to subpoena an out-of-state witness.
On April 16, 1990, Van Pelt filed a motion for an order to
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summon witnesses from another state and a brief in support thereof.
Pursuant to 5 46-15-113, MCA, Van Pelt requested the District Court
to subpoena Joyce Van Pelt and Doris Bodine, both of whom were
living in Kentucky. This Court held in State v. Sanderson (1985),
214 Mont. 437, 692 P.2d 479, that 5 46-15-113, MCA, provides the
only procedure to subpoena an out-of-state witness. The primary
reason for finding a need to subpoena Van Pelt's wife, Joyce, was
to provide her with financial assistance in coming to Montana. In
order to expedite the process, the District Court, the County
Attorney, and the defense made arrangements to have Joyce come to
Montana and chose not to subpoena her under 5 46-15-113, MCA.
The District Court denied appellant's motion to subpoena the
second witness, Doris Bodine, finding that she was not a material
witness. Doris Bodine is Van Pelt's ex-sister-in-law (the natural
sister of Van Pelt's previous wife) and was a neighbor to the Van
Pelts during the time the molestations occurred. Appellant states
that Doris Bodine was to testify as to where T.A.E. was during the
periods that her mother was at work. Apparently T.A. E. would spend
a considerable amount of time at the Bodines, playing with Doris1
children. It is appellant's assertion that he could not have
molested T.A.E. because he never had the opportunity.
In Sanderson we stated that compelling an out-of-state witness
to attend a trial was a discretionary decision resting solely with
the trial court judge. Sanderson at 448, 692 P.2d at 485. We also
held that the District Court's finding as to whether a witness is
a material witness or not, under 5 46-15-113, MCA, will not be
disturbed absent a clear abuse of discretion. Sanderson at 449,
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692 P.2d at 486. The District Court found Doris Bodine not to be
a material witness. Testimony that T.A.E. was at her house most
of the time would have been cumulative. There was ample evidence
at trial to show that T.A.E. was over at Doris1 while Joyce Van
Pelt was working. The testimony also substantiated the fact that
Van Pelt had many opportunities to molest T.A.E. while Joyce was
absent from the house for purposes other than work. The District
Court's decision that Doris Bodine was not a material witness is
supported by the record and is not an abuse of discretion.
The second issue is whether the District Court erred in
precluding the introduction of certain evidence under 5 45-5-
511(4), MCA.
On April 16, 1990, the State filed a motion in limine to
prevent the defense from introducing certain evidence regarding any
alleged previous sexual abuse of T.A.E. Appellant sought to
introduce evidence that T.A.E. was sexually assaulted by a cousin
when she was five years old. It was argued by appellant that
T.A.E. made allegations to her mother concerning an incident
involving digital penetration of her vagina. Appellant further
argued T.A.E. had also made allegations to her mother that her
natural father, Ron Edwards, had drilled holes in the bathroom wall
to watch her dress and had T.A.E. lie on him until he obtained an
erection. Appellant made an offer of proof and on April 23 prior
to trial, the District Court heard argument on the offer of proof
and received appellant's brief. The court reserved making any
ruling at that time but subsequently denied appellant's offer of
proof during his cross-examination of T.A.E.
The motion in limine was granted on the basis of § 45-5-
511 (4), MCA, which provides:
(4) No evidence concerning the sexual conduct of the
victim is admissible in prosecutions under this part
except:
(a) evidence of the victim's past sexual conduct
with the offender;
(b) evidence of specific instances of the victim's
sexual activity to show the origin of semen, pregnancy,
or disease which is at issue in the prosecution.
This Court has previously stated the purpose of 5 45-5-
511(4), MCA, is to prevent the trial from becoming a trial of the
victim. State v. Higley (1980), 190 Mont. 412, 422, 621 P.2d 1043,
1050.' Appellant argues that T.A.E. would not be made a victim by
allowing inquiry into possible prior sexual abuse. It is argued
that 5 45-5-511(4), MCA, prevents probing into past sexual conduct,
and not past sexual abuse. Appellant contends that because T.A.E.
could not have consented to any sexual acts, and was a victim of
abuse through no fault of her own, the raising of prior incidents
of abuse would not violate B 45-5-511(4), MCA. In other words,
it is alleged that there is no prior sexual misconduct of the
victim being put at issue. We find this argument unpersuasive.
Appellant cannot argue, as he attempts to, that he does not seek
to attack T.A.E.Is credibility but rather seeks to demonstrate that
T.A.E. could have gained her knowledge of sex outside of her
contact with defendant. The major purpose in appellant's attempt
to bring into evidence the incidents of prior abuse is to attack
In 1985, § 45-5-503(5), MCA, was recodified as 5 45-5-
511(4), MCA.
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T.A.E.'s credibility. Whether under the guise of showing the jury
how T.A. E. may have obtained her knowledge of sex, or not, the fact
is appellant wished to convince the jury that T.A.E. fabricated the
charges against him. The only way the jury could have found
appellant not guilty of the charges against him, would be by
finding that T.A.E.'s allegations were false. This is not to say
that 5 45-5-511(4), MCA, provides an impenetrable wall of
protection for T.A.E. and does not allow for her credibility to be
questioned or attacked. The Montana Rules of Evidence certainly
allow the credibility of a witness to be attacked, however, these
rules are not without limitation. See Rule 608, M.R.Evid.
Excluding evidence of alleged specific instances of prior abuse
was within the discretion of the District Court. The District
Court must determine whether the evidence is probative and weigh
that probative value against any prejudicial potential the evidence
may carry. The District Court found the evidence of prior sexual
abuse inadmissible. We will not disturb the District Court's
ruling on admissibility of evidence absent an abuse of discretion.
State v. Crazy Boy (1988), 232 Mont. 398, 402, 757 P.2d 341, 343.
The evidence clearly supports the finding that the prior
sexual abuse would not be relevant to the issue of whether
appellant sexually molested T.A.E. The conduct alleged in the
prior abuse of T.A.E. consisted of digital penetration of the
vagina, body-to-body touching, and I1peeping." The knowledge T.A.E.
exhibited at trial of sexual activity could not have been gained
from this type of prior abuse. There was sufficient evidence in
T.A.E. s testimony to conclude that the knowledge she had came from
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her activities with the appellant and not from any prior sexual
abuse.
Appellant also argues that 5 45-5-511(4), MCA, as applied by
the District Court, violated his constitutional right to
confrontation of witnesses under both the United States
Constitution and the Montana Constitution. This Court stated in
State v. Anderson (1984), 211 Mont. 272, 284, 686 P.2d 193, 200,
that a defendant's right to cross-examine the complaining witness
in a sexual offense case would be constricted "where there is
evidence of prior false accusations.~ (Emphasis added.) In other
words, any accusations or allegations the victim has made of prior
sexual conduct must have been proven to be false or admitted to be
false before it is admissible.
If the charges are true or reasonably true, then evidence
of the charges is inadmissible, mainly because of its
prejudicial effect, . . .
but certainly because of its
irrelevance to the instant proceeding. ...
Furthermore,
evidence of prior charges which have not been adjudicated
to be true or false; i.e., which may be true or false is
also inadmissible, primarily because its introduction
circumvents the interest in preserving the integrity of
the trial and preventing it from becoming a trial of the
victim . . .(reception of evidence which may be true or
false allows circumvention of laws designed to protect
legitimate interests of victim). These limitations do
not infringe upon a defendant's right to confrontation.
(Citations omitted; emphasis in original.)
Anderson at 284-285, 686 P.2d at 200.
We hold that the District Court did not abuse its discretion
in disallowing evidence of prior sexual abuse.
Affirmed. i
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We c o n c u r :